High court OKs appeals in private

City employees can have arbiter hear cases

AUSTIN Lubbock police and firefighters can appeal disciplinary actions to private hearing examiners, according to a Thursday ruling by the Texas Supreme Court.

The ruling came in a lawsuit brought by the city of Lubbock after Eric Wilson, a city police officer, challenged a 10-day suspension without pay in 1996. Wilson, who has since left the police force, was suspended for allegedly using excessive force against a prisoner and opted to have his case decided by an independent arbitrator.

Under a provision in the Texas Civil Service Act, police or fire employees can appeal a suspension to the local civil service commission or an independent third-party selected from a list of seven ''qualified'' and ''neutral'' persons submitted by the American Arbitration Association of the Federal Mediation and Conciliation Service. If the two sides don't agree on the hearing examiner, they alternately strike names off the list until only one is left.

City officials contended that Wilson's only choice was a hearing before the civil service commission.

Wilson's attorney, Craig Deats of Austin, said police and firefighters don't like to appeal to local civil service commissions that have been appointed by city officials.

''You don't feel you get an unbiased and neutral hearing,'' Deats said.

The city argued that its citizens never voted on the arbitration provision that was added after Lubbock adopted the civil service law in 1947. For that reason, the city contended that its local ordinance, which doesn't allow a disciplinary appeal to a private arbitrator, governs civil services.

In addition, the city argued that the private arbitration alternative authorized by the state law amounts to an unconstitutional delegation of legislative authority because it doesn't provide guidelines for AAA and FMCA, the two private arbitration services, to use in determining whether examiners are ''qualified'' and ''neutral.''

State District Judge Bill Shaver ruled against the city, but the 7th Court of Appeals in Amarillo held that the law unconstitutionally delegates legislative authority to a private entity.

The Supreme Court reversed the Amarillo court's ruling and held that the state law not the city ordinance governs.

''We conclude that once Lubbock's citizens voted to be governed by the Civil Service Act, they are governed by the act as it existed when the vote occurred, and as it is amended by the Legislature from time to time,'' Justice Craig T. Enoch wrote in the majority opinion.

Enoch said the city can opt out of the state law and return the administration of police and fire employees to local ordinances.

City Attorney Anita Burgess said it would be up to voters whether to opt out of the civil service law.

Burgess said city officials weren't surprised by the ruling. The Supreme Court ruled against the city last year in a similar case involving four police officers.

The city can file a motion for rehearing in the Wilson case, but Burgess said city officials are still discussing the ruling.

''No decision has been made,'' she said.

Deats said he's hopeful that the city will end its constant challenges to the state law.